Rockland County - Federal Court Hearing Transcript

FILED: ROCKLAND COUNTY CLERK 04/03/2019 03:23 PM INDEX NO.
031783/2019
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/03/2019
FILED: ROCKLAND COUNTY CLERK 04/03/2019 03:23 PM INDEX NO. 031783/2019
1
190312maC Conference
1 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 M.A.,
on behalf of his minor
4 children, H.R. and M., et al.,
5 Plaintiffs,
6 v. 19 CV 02066 VB
7 ROCKLAND COUNTY DEPARTMENT OF

HEALTH, et al.,
8
Defendants.
9
------------------------------x
10 United States Courthouse
White Plains, N.Y.
11 March 12, 2019
12:23 p.m.
12
Before:
13
THE HONORABLE VINCENT L. BRICCETTI,
14
District Judge
15
APPEARANCES
16
SUSSMAN & ASSOCIATES
17 Attorney for Plaintiffs M.A. on behalf of minor children.
MICHAEL H. SUSSMAN
18
COUNTY OF ROCKLAND DEPARTMENT OF LAW
19 Attorneys for Defendants County of Rockland, et al.
THOMAS E. HUMBACH and
20 BRIGITTE M. NAHAS BOTTA
21
22
23
24
25
- COURT REPORTER
SABRINA A. D'EMIDIO OFFICIAL
(914)390-4053
2
1 (In open court)
2 THE DEPUTY CLERK: In the matter of M.A. on behalf of
3 his minor children, et al., against Rockland County Department
4 of Health, et al.
5 Will counsel please note their appearance for the
6 record.
7 MR. SUSSMAN: Michael H. Sussman, Sussman &
8 Associates, Goshen, New York, for the plaintiffs.
9 Good afternoon, your Honor.
10 THE COURT: Good afternoon.
11 MR. HUMBACH: Thomas Humbach, County Attorney for the
12 County of Rockland, for the defendants.
13 MS. NAHAS BOTTA: Good afternoon, your Honor.
14 Brigitte Nahas Botta, Deputy County Attorney.
15 THE COURT: Welcome, everybody. Have a seat, please.
16 Let's see. On March 6th, just last week, the
17 plaintiffs commenced this case. Mr. Sussman came in with a
18 proposed order to show cause, which I granted in part. I
19 scheduled today's hearing on an expedited basis. I did not
20 include in that order to show cause the requested temporary
21 restraining order. I said that I wasn't ruling it out
22 necessarily, but I was not going to enter a TRO without hearing
23 from the defendants first in a matter of this importance. So
24 you're all here today.
25 First of all, let me just apologize to Mr. Humbach for
SABRINA A. D'EMIDIO - OFFICIAL COURT REPORTER

(914)390-4053
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190312mac Conference
1 one thing. Mr. Sussman will recall that when he was here ex
2 parte, although we did it in open court and there was a record
3 made, when I scheduled the matter for today, I stated on the
defendants'
4 record that the response would be due on Monday,
5 meaning yesterday, but I neglected to alter or amend the
6 proposed order that Mr. Sussman had submitted, and that was my
7 fault. I should have done it.
8 But I think that, Mr. Sussman, you agree with me, I
9 did say on the record it was going to be Monday.
10 MR. SUSSMAN: Yes, your Honor.
11 THE COURT: So, there was a request for an adjournment
12 of today's hearing, which I thought was unfounded. This is a
13 matter that needed to be addressed quickly, so I denied that.
14 There was a letter from one of your associates in your
15 office. I don't remember who. It might have been from you.
16 MR. HUMBACH: From Ms. Feiden.
17 THE COURT: Right, right, right. But when I denied
18 that, again, I was thinking, Well, today is whatever day it
19 was, Wednesday or Thursday, they have plenty of time to submit
20 something by Monday because I thought I had said Monday. I did
21 say Monday. I said it in open court. I just didn't put it in
22 the order, and that was my mistake.
23 Now, having said that, you rose to the occasion
24 because you did serve your papers on Friday, and I got a letter
25 from you today saying so.
SABRINA - REPORTER
A. D'EMIDIO OFFICIAL COURT
(914)390-4053
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1 Mr. Sussman, you received them some time on Friday?
2 MR. SUSSMAN: Yes, your Honor.
3 THE COURT: They weren't filed until yesterday, but
4 more importantly, you served them on opposing counsel on
5 Friday, correct?
6 MR. HUMBACH: Yes.
7 THE COURT: Hopefully, you'll accept my apology in
8 that regard; although, in a way, it worked out better for you
9 because if you had been required to do it by Monday, you
10 probably would have spent the entire weekend working on it. As
11 it is, you got it done on Friday. Anyway, I just wanted to
12 make sure you knew that and you understood why it happened, and
13 that is what happened. Nobody is perfect. Certainly that
14 applies to me, as well.
15 I think I'm prepared to decide this application. I do
16 have some questions really primarily for the defendants. I
17 have read all of the various papers and briefs and affidavits
18 and looked at all the exhibits and so forth.
19 Mr. Humbach, I have a couple of questions for you,
20 okay?
21 MR. HUMBACH: Yes.
22 THE COURT: We'll start with that. I may have
23 questions for Mr. Sussman, as well, but certainly I do have,
24 for you.
25 Of course, there's a big dispute here about the

(914)390-4053
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1 authority in the Section 66-1.10 of Title 10 of the New York
2 Code Rules and Regulations -- let's just call it 66-1.10 --
3 MR. HUMBACH: Yes.
4 THE COURT: -- which authorizes an exclusion order
5 after an outbreak occurs in a school. Those are the words. It
6 school."
says "in a
7 One of the affidavits you submitted, and I apologize
8 if I don't have that name -- here it is -- Debra who

oh, Blog,
9 I guess works for the State Department of Health --
11 THE COURT: -- she says in there -- let me find it,
12 hold on a second -- paragraph 11 of her affidavit refers to
13 Section and it cites the statute and the relevant --

66-1.10,
14 excuse not the statute -- the and it also cites

me, regulation,
15 the relevant statute, which is Public'Health Law Section 2164.
16 And then, at the end of that paragraph, she says, "Accordingly,
school,"
17 when a measles outbreak occurs in a a school, "the
18 commissioner, or their designee, may order the school in which
19 the outbreak exists, as well as other schools in close
20 proximity to such school, to temporarily exclude students who
21 have been vaccinated measles,"

not adequately against except
22 that 66-1 doesn't -- it's silent as to both of

say well, really
23 those points. It doesn't say it may order that school. It
24 also doesn't refer to other schools.
25 How is it that that regulation, which is imprecise in

(914)390-4053
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1 school,"
that.it says, "When an outbreak occurs in a comma,
something,"
2 "the commissioner can do how does that allow the
3 commissioner to do something other than in that school where
4 the outbreak occurs? You see my point? That's a big argument
5 that Mr. Sussman makes, of course. And I'm not sure you
6 addressed that explicitly in your papers. Maybe you did, but
7 I'm asking you now.
8 MR. HUMBACH: I will say at the beginning that the
9 general law on administrative law and the interpretation of
10 administrative law is that the agency that enforces those
11 regulations interprets them. And Dr. Blog, being an agent of
12 that agency, who has been involved in this particular outbreak
13 and the control of this particular outbreak, is interpreting
14 that regulation on behalf of her agency and giving us the
15 information that we need to do what we're doing, and that's
16 with respect to 66.1-10.
17 THE COURT: And that's why it's important that we're
18 talking about a regulation here, not a statute.
19 MR. HUMBACH: That is correct.
20 THE COURT: It's the law, but it's a regulation
21 enacted pursuant to a statute. It's not a statute.
22 MR. HUMBACH: That's correct. It is enacted in light
23 of the broad public health powers that the state has granted to
24 both the State Department of Health and County Departments of
25 Health. I do believe that if you look in the broad swath, I'll

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1 just address this very briefly, looking at the Supreme Court
2 precedent about control of public health, control of outbreaks
3 and epidemics from the Massachusetts cases Jacobson and Prince
4 that were over 100 years old, up until the present day in
5 Phillips, that great deference is given to public health
6 protection and interpretation of the statutes and regulations.
7 I will add that described in my papers is the
8 foundation of the County Commissioner of Health's powers is in
9 Article 1 of the Code --

Sanitary
10 THE COURT: Right. I'm not asking about that now.
11 MR. HUMBACH: Okay. I just wanted to discuss that.
12 THE COURT: Let's do one thing at a time.
13 MR. HUMBACH: Okay. No problem.
14 THE COURT: It's not unreasonable that you would
15 answer a question I didn't ask, but I didn't ask that cpestion,
16 okay?
17 Basically, what you're saying, as I understand it, is
18 while 66-1.10 does not explicitly authorize an exclusion order
19 for a particular school or schools, or schools in a geographic
20 area, nonetheless, under the circumstances, you believe that
21 the regulators who are charged with obviously a very important
22 function, the regulators have the power to interpret it broadly
23 in order to carry out their essential mission?
24 MR. HUMBACH: That's correct, and in light of the
25 statutory authorization in 2100 and 2164. Yes.
D'EMIDIO - OFFICIAL
SABRINA A. COURT REPORTER
(914)390-4053
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1 THE COURT: Let me ask you another question. I think
2 in your papers you say Rockland County has seen about 145 cases
3 of measles since September of last year and that that's an
4 unprecedented number in a relatively short timeframe.
5 How does this compare to the number of cases in other
6 counties in the state? In other words, I've heard news reports
7 about Kings County or Brooklyn versus 2.8 million people that
8 live in Brooklyn or something. There's obviously a lot more
9 than Rockland County, But I'm trying to understand the
10 context, Rockland County versus other parts of the state.
11 What's going on vis-à-vis measles?
12 MR. HUMBACH: I'm not precise on the numbers from
13 Brooklyn, and my understanding, though, that it is also
14 hundreds of cases. These are confirmed cases that we're
15 speaking of. I want the Court to understand where we're coming
16 from.
17 THE COURT: Right.
18 MR. HUMBACH: These are cases that we know the person
19 has measles. That would not include any case where a person
20 does not go to a doctor, does not seek other information,
21 doesn't report it themselves.
22 THE COURT: So, there's a serious outbreak in
23 Brooklyn, though, again, that's a far larger community than
24 Rockland County.

(914)390-4053
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1 THE COURT: But putting aside Brooklyn for a minute,
2 are there other counties in the state that are experiencing
3 this, or is it just Rockland?
4 MR. HUMBACH: There have been a few cases in Orange
5 County that I know of. There's one case now appearing in
6 Westchester that I recall reading about. Sorry. I've just
7 been given some information.
8 THE COURT: By the way, counsel's appeared in this
9 your Ms. -- I'm if I'm not

case, co-counsel, sorry pronouncing
10 it -- Nahas Botta.
correctly
11 MS. NAHAS BOTTA: Yes.
12 THE COURT: You're welcome to speak.
13 MS. NAHAS BOTTA: Okay.
14 THE COURT: You don't have to only flag down
15 Mr. Humbach, unless Mr. Humbach, for some reason, doesn't think
16 you should be, but your name is on here. You're welcome to
17 speak.
18 MR. HUMBACH: As opposed to jumping back and forth at
19 the podium --
20 THE COURT: I get it, but if she has some specific
21 knowledge that she has to give you a note on, then it might
22 just be better for her to tell me.
23 MR. HUMBACH: Okay.
24 THE COURT: You're welcome to do it. I leave it to
25 you. You figure it out between yourselves. Don't think I'm
SABRINA A. D'EMIDIO - OFFICIAL REPORTER

COURT
(914)390-4053
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1 offended by that because I'm not.
2 Anyway, I'm sorry, she was giving you a note.
3 MR. HUMBACH: She gave me a note that this is the
4 largest measles outbreak since 2000 where there was I think
5 close to 1,000 but that's -- or 1991.

cases, actually
6 THE COURT: Statewide or countywide?
7 MR. HUMBACH: That was in the state, and I think it
8 was primarily in the city.
9 THE COURT: The bottom line is, this outbreak is
10 really unusually large?
12 THE COURT: And concentrated in Rockland County.
13 MR. HUMBACH: Yes. This is certainly the largest
14 outbreak in Rockland County in three decades.
15 THE COURT: Which gets me to the next question: What
16 exactly is the geographic scope of the exclusion order; in
17 other words, the papers identify two zip codes, one of which
18 includes the Green Meadow --

school,
19 MR. HUMBACH: Correct.
20 THE COURT: -- which I think is is that

10977; right?
21 MR. HUMBACH: That's correct.

F
22 THE COURT: And there's another zip code, 10952. I'm
23 not saying that it's crazy to do it by zip code, but is it
24 limited to just to those zip codes, or is the order countywide?
25 Where does it apply geographically right now?

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1 MR. HUMBACH: The orders are actually not being given
2 in a blanket fashion. The orders are actually being given to
3 the schools, but the schools that are being selected for the
4 orders are based on a rule.
5 THE COURT: Based on a what?
6 MR. HUMBACH: On a rule. And rule number one is, Are
7 you in one of these two hotspot zip codes?
8 THE COURT: It's not limited to those, but those zip
9 codes include the communities that you've identified?
10 MR. HUMBACH: There are proximity rules being used, as
11 well, so if a school or a daycare is within close proximity to
12 a school that has an outbreak or has experienced an outbreak,
13 then that is also at issue. But in this case, because of the
14 number of cases as illustrated on.the map that we provided in
15 the exhibits, in this particular area, in consultation with the
16 state health authorities, it was determined that to have a
17 blanket exclusion in these areas would be the best way to
18 prevent further cases from occurring, or at least to slow it
19 down to the maximum extent in a preventative manner as opposed
20 to a reactionary manner in which case people already have the
. 21 disease and have already spread it.
22 THE COURT: Next question, and this is also a related
23 but that does -- I wasn't clear on the

question, exactly
24 geographic scope. I think you've answered that. But in the
25 papers, you say there were 60 schools that were initially

(914)390-4053
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1 affected by the order. That's now declined to 37 because other
2 schools have met the 95 percent vaccination rate which was part
3 of the order.
4 MR. HUMBACH: Yes.
5 THE COURT: That sounds like a lot of schools. Now
6 that's both public and private schools, right?
7 MR. HUMBACH: Yes.
8 THE COURT: And religious schools, too, presumably,
9 all sorts of schools.
10 MR. HUMBACH: They're private schools to me, your
11 honor. Whether they're religious or not religious, they're
12 private schools.
13 THE COURT: There's public schools and then there's
14 all other schools?
16 THE COURT: This 60 schools, that includes public and
17 private?
18 MR. HUMBACH: That is correct.
19 THE COURT: Is that in the county or is it just more
20 local in that 10977 and 10952 zip code? Sixty seems like a lot
21 to me. Could there be 60 schools in those two zip codes?
22 MR. HUMBACH: In response to that question, yes.
23 THE COURT: Well, I think I asked two different
24 questions.
25 MR. HUMBACH: In response to the one that immediately
D'EMIDIO -
SABRINA A. OFFICIAL COURT REPORTER
(914)390-4053
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1 preceded my answer, can there be 60 schools there? Yes,
2 because particularly in the religious community, in the
3 ultraorthodox religious community, there are many smaller
4 to handle their large -- minor

schools, many schools minority
5 population.
6 THE COURT: So, all 60 of these schools are in close
7 proximity to where the outbreak is shown on the map?
8 . MR. HUMBACH: Yes.
9 THE COURT: It doesn't include places like Tomkins
10 Cove or Palisades or something which are about as far away from
11 the outbreak in Rockland County as you can be.
13 THE COURT: Okay. There's some dispute in the papers
14 about the current duration of the exclusion order. Certainly
15 it was stated to last 21 days after the last -- I forget
16 now what it says. Hold on a second --

exactly
17 MR. HUMBACH: After the last --

reporting
18 THE COURT: After the last reported case.
19 MR. HUMBACH: Words to that effect, yes.
20 THE COURT: Then there's some suggestion in
21 Mr. Sussman's papers that, at some point, somebody within the
22 Rockland County Department of Health said that Dr. Ruppert, who
23 is the Commissioner, said that it was being extended to 42
24 days. And then in your papers, you appear to say, Well, no,
25 that's not true, it's a possibility, that's under
- OFFICIAL REPORTER
SABRINA A. D'EMIDIO COURT
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1 consideration, but that's not the case now.
2 MR. HUMBACH: There's no such order at this moment.
3 THE COURT: It's 21 days, period.
4 MR. HUMBACH: It's 21 days as we speak.
5 THE COURT: Although, theoretically, it could be
6 longer, but it isn't right now.
7 MR. HUMBACH: It is not right now.
8 THE COURT: All right. That's what happens when A
9 says something to B, and B says something to C and so forth,
10 and then, ultimately, I'm F in that pattern.
11 . MR. HUMBACH: And we're numerous --

managing employee.
12 I don't know exactly.how many emplo.yees are touching this or
13 how many are speaking to the schools, but it's not directly
14 from the Commissioner's mouth that we're speaking, but it!s, as
15 you say, a grapevine in managing the employees.
16 THE COURT: All right.
17 Mr. Sussman, I have a couple of questions for you,
18 well, I guess sort of responding to what Mr. Humbach said. Do
19 you agree that a court should generally defer to the discretion
20 of health officials -- this is a health this is not just

case,
21 any kind of case involving government officials, this is a case
22 determinations public health -- in

involving regarding the
23 interpretation of rules and regulations that are enacted
24 pursuant to statute?
25 MR. SUSSMAN: No, I don't.

(914)390-4053
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1 THE COURT: You don't think so?
3 THE COURT: I'm not talking about 66-1 is a rule, not
4 a regulation. You don't think they should be given that kind
5 of authority. Why not?
6 MR. SUSSMAN: I think it depends on the legal
7 structure that you're operating in, the rights that are
8 involved. I think it's a broader inquiry than simply
9 discretion as a term. I think we're here in a certain context.
10 THE COURT: Why not? Aren't they supposed to protect
11 the public health, and therefore, do what is necessary to do
12 that?
13 MR. SUSSMAN: As the cases cited by counsel indicate,
14 the protection of public health is a very overbroad statement.
15 The question -- the question of the Court --
16 THE COURT: You're a member of the public, right?
17 MR. SUSSMAN: As are you.
18 THE COURT: And you have children. And I'm a member
19 of the public. I don't happen to reside in Rockland County,
20 but I think protecting the public health is, yes, I guess it's
21 broad, but it's pretty darn important, isn't it?
22 MR. SUSSMAN: We all agree that protecting public
23 health is important. The question in this case, though, is
24 that there are other rights at stake. And the protection of
25 public health can't be examined exclusively and cabined by
- OFFICIAL
SABRINA A. D'EMIDIO COURT REPORTER
(914)390-4053
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1 itself. I think the legislature and the regulatory authorities
2 made choices here which are being trespassed. That's why we're
3 here.
4 THE COURT: Let me stop you there.
5 MR. SUSSMAN: Sure.
6 THE COURT: The Supreme Court held about 120 years ago
7 or something that, effectively, a state could require 100
8 percent of students to be vaccinated, period. And there was no
9 constitutional issue there at all, right?
10 MR. SUSSMAN: The Supreme Court held that, but states,
11 as in New have --
York,
12 THE COURT: iBy statute, have carved out exceptions,
13 but that's statutory. That's not federal.
-
14 MR. SUSSMAN: The due process --. .
15 THE COURT: You could have gone to the Supreme Court
16 Rockland County, for example, and brought an Article 78
17 proceeding, which I think is what your third claim is, although
18 you never mention that anywhere. I'm not really sure that's
19 what it is, but you chose to bring here. And in order to bring
20 it here, you couldn't just bring it as an Article 78 and say,
21 you know, Mr. Humbach's clients exceeded their authority and
22 they acted unlawfully, and therefore, a justice of the Supreme
23 Court should restrict it in some way. You didn't do that. You
24 brought it in federal court.
25 MR. SUSSMAN: And there are reasons for that. Article

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1 78 --
2 THE COURT: I'm trying to figure out what the reasons
3 are.
4 MR. SUSSMAN: Article 78s are not generally used to
5 challenge constitutional matters.
6 THE COURT: So what?
7 MR. SUSSMAN: So what is this?
8 THE COURT: You do -- I think you have -- is

have
9 claim number three an Article 78?
10 MR. SUSSMAN: It is. It's an irrationality claim.
11 I THE COURT: All right.
12 MR. SUSSMAN: But the point here is this: the federal
13 constitutional right, which is most cardinal to this case,.
14 which was recognized also about 100 years ago, is the right of
15 a parent to chose their school.
16 What's happened here is that there's been a broad
17 order of exclusion against the school in which there are no
18 cases. That's not disputed in the matter. The vast majority
19 of students in that school now are vaccinated. Those students
20 are not at any public health risk from excluding other
21 children.
22 THE COURT: Wait. Hold on a second. You said the
23 vast majority. I think your papers said it was 50 percent.
24 MR. SUSSMAN: That was initially. Initially it was 50
25 percent; now it's gone up to approximately 70 percent in the

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1 schools in question.
2 THE COURT: So, you think the percentage is important.
3 MR. SUSSMAN: I but I think that it matters --

don't,
4 THE COURT: Do you? You just said it was the vast
5 majority, so it sounds like you think it's important.
6 MR. SUSSMAN: Well, I think it's important in the
7 sense that those students are protected. The other students,
8 there's been no reported case.on. And as it's pointed out in
9 all the affidavits, their interaction with this community that
10 the claim is proximate to, is nil. These communities are
11 segregated communities. I see a map, but there's been no
12 identification of where the cases are in light of this
13 community whatsoever.
14 . The County did submit papers, but the papers are vague
15 on where those cases are supposed to have been occurring, when
16 they were occurring, when the last case was. There's no
17 specification in their papers.
18 THE COURT: Keep in mind, you're the one bringing this
19 lawsuit, and more specifically, you're the one seeking an
20 injunction.
21 MR. SUSSMAN: Absolutely.
22 THE COURT: So, really, the burden is more on you than
23 it is on the County. The Well --

County says, basically the
24 County is saying we have a measles outbreak, but that's not in
25 . dispute. It's unprecedented. That's not in dispute. We're in
D'EMIDIO - REPORTER
SABRINA A. OFFICIAL COURT
(914)390-4053
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.
1 the business of protecting the public health. That's not in
2 dispute. And in order to protect the public health, under
3 these unique circumstances, we need to act aggressively.
4 MR. SUSSMAN: And they're not acting aggressively,
5 guite obviously.
6 THE COURT: They're not acting aggressively?
7 MR. SUSSMAN: Absolutely not. They're acting
8 aggressively with regard to one matter, which is excluding
9 children from school, which raises substantial constitutional
10 questions.
11 What they're not what they're not --

doing, doing
12 THE COURT: You say that, but you don't cite any cases
13 or anything to support that.
14 MR. SUSSMAN: appears ¬-

Society
15 THE COURT: You just say it.
17 THE COURT: I'm just a lowly district judge. I'm
18 doing the best I can, but I'm you have to help me out.
19 MR. SUSSMAN: Pierce v. Society, which is a 1925 case,
20 a Supreme Court case, which says explicitly that parents have
21 the right to choose a private school, so I'm not trying to be
22 obscure here.
23 THE COURT: Isn't there another Supreme Court case and
24 also a Second Circuit case that says notwithstanding that, or
25 more recently, a Second Circuit case, notwithstanding that, a

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1 state can constitutionally require 100 percent of school-age
2 children to be vaccinated?
3 MR. SUSSMAN: No. The only relevant Second Circuit
4 case is Phillips, which is a 2014 case, which I cite and
5 discuss in my reply memorandum at length. In Phillips, the
6 fact pattern is that there was an exclusion order with regard
7 to a school in which the measles had arisen.
8 THE COURT: True, so it's factually distinguishable.
9 MR. SUSSMAN: But -- the problem

legally see, is,
10 there's a regulation, and the.interpretation of that regulation
11 is not simply something for the agency. In my view, it's
can in. it school,"

12 something the Court engage Where says "a
authorities,"
13 where it says "contact appropriate school .it
14 seems to me that regulation is. itself. recognizing the balance
15 which I believe the Court should engage in.
16 The balance is between the rights of individuals to
17 attend school, which is a critical constitutional right
18 recognized in our state and required in our state of every
19 parent on the one hand, versus the right of public health
20 authorities to exclude; those are the balances.
21 THE COURT.: Well, I think, more specifically, the
22 right of public health authorities to decide how to best carry
23 out their mission, and one of the ways to do that is to
24 exclude, but it's not like public health authorities say, Let's
25 see, today we'll exclude that school, tomorrow it will be that
- OFFICIAL
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1 school.
2 MR. SUSSMAN: It is that. It is that.
3 THE COURT: No, it's not. It's, We have an
4 unprecedented outbreak and we need to act.
5 MR. SUSSMAN: Actually, frankly, if you look carefully
6 at what's happened here, it's not that.
7 The outbreak was in October. In October, your Honor,
8 in October what they did was send a letter to our school, as
9 did the state. At that time, they said you are not to exclude;
10 keep the children in school. So, that was the first step they
11 took, and they cited the same authority. They said they have
12 --
authority
13 THE COURT: In other words, they proceeded in a
14 careful way. didn't.over- --

measured, They
15 MR. SUSSMAN: No.
16 THE COURT: -- didn't overreach.

they
17 MR. SUSSMAN: No, they didn't quarantine those
18 individuals who they specifically have statutory authority to
19 do -- the health law

that's what public authority particularly
20 gives them authority to do, which is quarantine. They didn't
21 do that. They had a population which was a clear population
22 where this was breaking out. They knew what that population
23 was. Unfortunately, it was a religiously-defined population.
24 So rather than quarantine the population and direct an order to
25 that population, they didn't do that, which would have been the
SABRINA -
A. D'EMIDIO OFFICIAL COURT REPORTER
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1 way, from a public health point of view, to deal with the
2 outbreak.
3 THE COURT: Says you. Are you a public health --
4 MR. SUSSMAN: Says my experts who gave the affidavits
5 in this case. But the point is, that's what the statute itself
6 particularly allows them to do. Specifically, it talks about
7 infected places and it talks about infected people, as I cite
8 in my reply brief. They didn't act on that. They acted in a
.9 different way. They did not exclude at that point.
10 Now, on December 7, they entered a broad exclusion
11 order, even though, in that period of time, there was no
12 outbreak in our community, broadly. defined. This is more than
13 a school. It's a broader community. It's an 11-acre campus on
14 a much larger area of Chestnut Ridge. There was no reported
15 case in Chestnut Ridge at that time, and there has been none
16 since.
17 So, at that point, what their interest was, as is
18 clear from the documents in the December 3rd letter, was to,
rates."
19 quote, "increase vaccination That was their principal
20 public health concern. Increasing vaccination rates is an
21 issue which is bound up with the religious exception. What
22 were to do - and this is critical -

they really trying is to
23 diminish the religious exemptions, even though those exemptions
24 are required by state law, those exemptions were sought through
25 the state law process, which my clients took advantage of. So
SABRINA D'EMIDIO - OFFICIAL

A. COURT REPORTER
(914)390-4053
23
1 at that said now your school --

point, they
2 THE COURT: Let me -- hold on a second.
3 MR. SUSSMAN: Sure.
4 THE COURT: What if the Commissioner had said -- I'm
5 not talking about state law now, right, I'm talking about
6 federal constitutional law, which is the reason you say you're
7 here -- if the State of New or a designee of the

York,
8 Commissioner of the Department of Health, State of New York or
9 the governor or somebody said, Look, you know what? I know the
10 statute says what it says, but we're going to require 100
11 percent vaccination, period, is that a constitutional
12 violation?
13 MR. SUSSMAN: Absolutely.
14 THE COURT: Why?
15 MR. SUSSMAN: Why? Because there is a right, as
16 you're well aware, of how due process rights are created,
17 they're created by state law. If you have an edifice of state
18 law, which you have in New York, which recognizes religious
19 exemptions and allows a parent to apply for them, a school to
20 administer them, and students to take advantage of them with
21 their parents, if that's the edifice of state law, there has to
22 be at least a compelling state interest to deal with that. You
23 can't -- I don't you're the

simply say know, saying governor,
24 by fiat, can just change state law? He can't just change state
25 law.

(914)390-4053
24
1 THE COURT: No. I didn't say that. Obviously that
2 would be unlawful.
3 MR. SUSSMAN: But no one has done that. The point is,
4 that hasn't happened.
5 THE COURT: Say again.
6 MR. SUSSMAN: That has not happened.
7 THE COURT: Exactly. That would be a much more
8 extreme act of a state official than what has happened here.
9 MR. SUSSMAN: I don't agree. I don't agree that it
10 would be more extreme. What's happened here --
11 THE COURT: Obviously it's more extreme. Clearly, it
12 is. That would have overridden all. of the religious exemptions
13 that people have to be vaccinated.
14 MR. SUSSMAN: The force and effect, the force and
15 effect of this exclusion order is to do precisely that
16 targeted, targeted to a school which has no measles outbreak.
17 That's the force and effect. When the Court says it would have
18 been 100 percent, the same thing is true.
19 THE COURT: There were 60 schools that were affected
20 by the exclusion order, not just this school.
21 That's another thing. If this had been just this
22 school, it might be a different situation, but it's not. It's
23 a large number of schools.
24 MR. SUSSMAN: Look, as far as we understand it, there
been -- I don't know of school -- our research

25 has no any has
-
SABRINA A. D'EMIDIO OFFICIAL COURT REPORTER
(914)390-4053
25
1 shown no school where there are no outbreaks of this epidemic,
"outbreak," that
2 quote/unquote, this there's been no school we
3 know of that's covered by this order which does not have an
4 outbreak, and if there were, they should be here in court, too,
5 with the same argument.
6 THE COURT: What about that, Mr. Humbach? Are any of
7 the schools that were covered schools where there was no
8 outbreak? Because there was no outbreak -- or not even an

,
9 outbreak -- there was no case of measles at Green so

Meadows,
10 what about some of these other 60 schools or 59 schools?
11 MR. HUMBACH: A moment, your Honor.
12 MR. SUSSMAN: Do you have any water?
13 THE COURT: For you, Mr. Sussman, anything you want.
14 MR. SUSSMAN: Thank you.
15 MR. HUMBACH: I do not have that on hand; however, I
16 will say that if there are schools within the blanket area of
17 those two zip codes, they are excluded. There's nobody who has
18 been given a free pass because there have been no infections
19 among the student body.
20 THE COURT: If you're in those zip codes, you're
21 excluded?
THE COURT: That's the --

23 rule,
MR. HUMBACH: That's the rule --

24
THE COURT: -- irrespective of whether there was a

25
. SABRINA A. D'EMIDIO - OFFICIAL COURT REPORTER

.
(914)390-4053
26
1 measles case reported at any particular school?
3 THE COURT: Within those zip codes?
4 MS. NAHAS BOTTA: If I can say just one thing.
5 Provided you have under 95 percent vaccination --
6 THE COURT: Right.
7 MR. HUMBACH: Yes.
8 THE COURT: The 95 percent overrides everything that
9 we're saying?
11 THE COURT: That's determined to be a sufficient
12 number so as to avoid this public health risk, or reasonably
13 mitigate the public health risk.
14 MR. HUMBACH: To starve the disease; yes.
15 MR. SUSSMAN: But the question still is begged,
16 because the issue here is whether parents, who have religious
17 exclusions, can be swept up in that and what the statutory
18 basis for sweeping them up is, if there is one, in New York.
19 My argument is very simple, and the Phillips case does
20 not refute this. It supports it. In Phillips, what the Second
21 Circuit was dealing with was a situation where there was a
22 measles case in the school, which brings it clearly within the
23 ambit of the provision of law you spoke about, but this is
24 important --
25 THE COURT: It was chicken pox, but go ahead.
D'EMIDIO -
SABRINA A. OFFICIAL COURT REPORTER
(914)390-4053
27
1 MR. SUSSMAN: Chicken pox, right.
2 It's important because it goes to the interpretation
3 of the provision you started talking with Mr. Humbach about,
4 which Mr. Humbach and his folks want to say we can now
5 interpret in this broad but in in Brooklyn - you

manner, fact,
6 asked about Brooklyn - in when the outbreak

2018, occurred,
7 promulgated by the New York City Board of Education, were rules
8 entirely to the contrary to the rules that are being now
9 employed. Those rules were school-specific rules where there
10 has been an outbreak, and that's how they interpreted 66-1,
11 etc. They did not interpret it to every school, private or
12 public, that's not part of that religiously-defined outbreak.
13 So to me, there's a great deal of arbitrariness about
14 this interpretation, and it's important because these parents
15 have a right to choose a school. And if that school is, in
16 fact, outside of the ambit of the outbreak, that value has to
17 be given constitutional recognition, because what's happening
18 right now is these individual parents, who have made the choice
19 of that school, are being deprived of their right to have their
20 children attend that school by dint of the force, the overreach
21 of this order.
22 Now, the Court can say, Well, public health requires
23 . it, but frankly, any inquiry would suggest that makes honestly
24 no sense at this point in time because you have a group of
25 children, not one of whom have been either initially affected
SABRINA -
A. D'EMIDIO OFFICIAL COURT REPORTER
(914)390-4053
28
1 nor affected to the state five months after the outbreak, and
2 who, in terms of the nature of their lives, have no contact
3 with the community which, in fact, has the outbreak. And if
4 they went to their school, it would be the safest place for
5 them because there's no outbreak at the school. It's not an
6 infected place as defined by law.
7 So, there's no rationality. And when I say
8 rationality, it's not just the third cause of action that
9 depends on that; it's the others, because clearly, as your
10 hypothetical suggests, there may be cases where there's such a
11 public health requirement as to just allow obliteration of any
12 other constitutional principle or value, but that's not this
13 case. It's far from this case.
14 THE COURT: Mr. Sussman, thank you. I've read all of
15 your papers.
16 . Mr. Humbach, I think, is itching to say something.
17 Quickly, because I am prepared to rule.
18 MR. HUMBACH: Yes. Just a quick factual point about
19 Brooklyn.
20 I don't have orders from Brooklyn. I don't see them
21 in the record anywhere, whether in Mr. Sussman's papers or my
Times"
22 own, but there is a "The New York article attached to
23 the affirmation or declaration of Dr. Ruppert that talks about
24 that in December, the City Health Department issued emergency
25 health measures ordering schools in select zip codes to

(914)390-4053
29
1 prohibit unvaccinated students from attending class. That's
2 just for the point that there is at least something to be
3 thought of over that.
4 THE COURT: Look, I'm going to rule on this
5 application for a injunction -- for a TRO and

preliminary well,
6 a preliminary injunction.
7 First of all, let me.say that plaintiffs are parents
8 of children in Rockland County who have been excluded from
9 their school, Green Meadow Waldorf School or its sister school
10 Otto Specht - which I will refer to as Green

collectively
11 Meadow - an order of Defendants Rockland Department

by County
12 of Health and its Commissioner Dr. Patricia Ruppert, because
13 the children are not vaccinated against the measles in the
14 midst of a measles outbreak.
15 Plaintiffs claim their children's exclusion from Green
16 Meadow violates their substantive and procedural due process
defendants'
17 rights and that order excluding their unvaccinated
18 children from attending school is arbitrary, capricious and
19 contrary to state law.
20 In addition to seeking injunctive relief and
21 compensatory damages, plaintiffs asked the Court to issue a
22 temporary restraining order and a preliminary injunction,
23 permitting Green Meadow to re-admit their children immediately.
24 On March 6, as I mentioned earlier, I issued an order
25 to show cause scheduling today's hearing. I declined to

(914)390-4053
30
1 include a TRO in the order to show cause, although I stated on
2 the record that I would reconsider the matter after hearing
3 from defendants on an expedited basis. Defendants served their
4 responsive briefing on March 8, 2019 and filed it on March 11,
5 2019.
plaintiffs'
6 In considering motion, I have reviewed the
7 complaint, the motion and the reply in support of the temporary
8 restraining order and preliminary injunction, and the
9 declarations and exhibits submitted in support thereof. I have
defendants'
10 also reviewed opposition brief and their
11 declarations and exhibits filed in opposition. Of course, I
12 also listened to oral argument on the motion today or at least
13 responsive to the questions that I asked.
14 Having done so, and for the reasons I'm about to
15 explain, I find and conclude plaintiffs have not met the high
16 bar for issuance of a preliminary injunction or temporary
17 restraining order because they have not demonstrated a clear or
18 substantial likelihood of success on the merits or demonstrated
19 that the public's interest weighs in favor of granting the
20 injunction.
21 I will briefly summarize the relevant background
22 facts.
23 Rockland County is in the midst of an unprecedented
24 measles outbreak. Since October 2018, roughly 145 cases of
25 measles have been reported in Rockland County. This outbreak

(914)390-4053
31
..
1 is part of the largest measles outbreak that New York State has
2 seen since 1989. And that's all according to Dr. Ruppert's
3 declaration at paragraph 25.
4 Located in Chestnut Ridge in Rockland County, Green
5 Meadow is a private school that enrolled about 300 students
6 from nursery school through 12th grade at the start of
7 2018/2019 academic year. About 50 percent of those students at
8 that time, in any event, were not vaccinated against measles.
9 Section 2164 of the New York Public Health Law requires
10 children age 2 months through 18 years to be immunized against
'
11 measles and other diseases in order to attend school. However,
12 Subsection 9 of that statute allows parents who hold a sincere
13 and genuine religious belief, contrary to the school
14 immunization requirement, to obtain a religious exemption to
15 the vaccination requirement.
16 Plaintiffs in this case are parents of a number of
17 students of Green Meadow, all of whom applied for and received
18 religious exemptions from vaccinations.
19 On October 18, 2018, after several measles cases were
20 reported in Rockland County, defendants issued an order
21 requiring schools to exclude unvaccinated students if a measles
22 case had been reported at the school. The exclusion of
23 unvaccinated children is permitted under Section 66-1.10 of
24 ¡ Title 10 of the New York Code of Rules and Regulations, which,
25 in pertinent part, provides, quote, "In the event of an
EPORTER
(914)390-4053
32
1 outbreak of a vaccine-preventable disease in a school, the.
designee,"
2 commissioner or his or her meaning the State
3 Commissioner of the Department of Health, "or his or her
4 designee may order the appropriate school officials to exclude
5 from attendance all students who have been exempted from
immunization."
6
7 At the time of the October 18 order, no measles cases
8 had been reported at Green Meadow and all unvaccinated children
9 therefore continued to attend school. Despite these steps,
10 defendants believe this restriction was insufficient to stem
11 the spread of measles because cases continued to occur.
12 Defendants observed that all of the cases were occurring in a
13 limited geographical area within Rockland County, which
14 included the location occupied by Green Meadow.
15 According to Rockland County Health Commissioner
16 Dr. Ruppert, New Square, Spring Valley and Monsey are the,
"epicenter,"
17 quote, end quote, of the outbreak. These
18 communities are located in zip codes 10977 and 10952. Green
19 Meadow is located in zip code 10977. Accordingly, on
20 December 3, 2018, defendants applied the exclusion order to
21 Green Meadow because of the school's low vaccination rate and
22 the proximity of confirmed cases in the community.
23 The exclusion order was to be effective for 21 days
24 after the last case of measles was identified in close
25 geographic proximity to the school. The exclusion order was
- OFFICIAL REPORTER
SABRINA A. D'EMIDIO COURT
(914)390-4053
33
1 extended to all schools in the geographic area, public and
2 private, and affected approximately 60 schools.
3 As of December 7, 2018, the unvaccinated Green Meadow
4 students stopped attending school, and to date, they have not
5 been permitted to return to school. Plaintiffs claim no
6 student or employee affiliated with Green Meadows has
7 contracted the measles since the outbreak began.
8 Defendants said the exclusion order would remain in
9 effect for all schools in the geographic area unless the
10 schools can show they have reached a 95 percent vaccination
11 rate. Since broadly applying the exclusion order in
12 December 2018, 37 of the 60 schools affected by the order have
13 reached the 95 percent threshold, including Green Meadow High
14 School.
15 On February 22, 2019, the Commissioner of the New York
16 State Department of Health deemed the outbreak in Rockland
health,"
17 County to be an, quote, "imminent threat to public end
18 quote. And that's from Dr. Ruppert's declaration at paragraph
19 26.
20 Now regarding the legal standards that apply here, the
21 familiar preliminary injunction standards apply in this case.
22 Quote, "A preliminary injunction is an extraordinary and
23 drastic remedy, one that should not be granted unless the
persuasion,"
24 movant, by a clear showing, carries the burden of
25 end quote. The name of the case in which the quote comes from

(914)390-4053
34
1 is Sussman v. Crawford, 488 F.3d 136, 139 (2d Cir. 2007).
2 "To obtain a preliminary injunction when such an
3 injunction would implicate public interest, the moving party
4 must demonstrate: (1) irreparable harm absent injunctive
5 relief; (2) either a likelihood of success on the merits, or a
6 serious question going to the merits to make them a fair ground
7 for trial, with a balance of hardships tipping decidedly in the
plaintiffs'
8 favor; and (3) that the public's interest weighs in
injunction."
9 favor of granting an And the cite for that is Red
10 Earth, LLC v. United States, 657 F.3d 138, 143 (2d Cir. 2011).
11 However, when a party, quote,. "seeks a preliminary injunction
12 that will affect government action taken in the public interest
13 pursuant to a statutory or regulatory scheme, the injunction
14 should be granted only if the moving. party meets the more
standard,"
15 rigorous likelihood-of-success end quote. And
16 . that's a quote from Wright v. Giuliani, 230 F.3d 543, 547 (2d
17 Cir. 2000).
18 In addition, when the injunction sought, quote, "will
quo,"
19 alter rather than maintain the status end quote, a
20 plaintiff must make an additional showing that the likelihood
substantial,"
21 of success is, quote, "clear or end quote. And
22 that's from the same page in the Wright v. Giuliani case.
23 Now, as I noted earlier, plaintiffs bring three
24 claims: a substantive due process claim, a procedural due
25 process claim and a claim that the exclusibn order is

(914)390-4053
35
1 arbitrary, capricious and contrary to state law. I will
2 address each in turn.
3 First, regarding substantive due process, quote,
4 "Substantive due process protects against government action
5 that is arbitrary, conscience-shocking or oppressive in a
6 constitutional sense, but not against a government action that
advised,"
7 is incorrect or ill end quote. And that's a quote
8 from a case -- I can't pronounce -- v. of

Kaluczky City White
9 Plains, 57 F.3d 202, 211 (2d Cir. 1995).
10 To succeed ultimately on their substantive due process
11 claim, plaintiffs must show (i) they had a valid liberty or
12 property interest, and (ii) defendants infringed on that
13 interest in an arbitrary or irrational manner. The cite for
14 that is Harlen Associates re: Mineola, 273 F.3d 494, 503 (2d
Defendants'
15 Cir. 2001). infringement, quote, "must have
16 occurred under circumstances warranting the labels arbitrary
outrageous,"
17 and end quote. That's from Natale v. Town of
18 Ridgefield, 170 F.3d 258, 262 (2d Cir. 1999).
defendants'
19 Here, plaintiffs claim that order that
20 their children be temporarily excluded from school or
plaintiffs'
21 vaccinated violates constitutional right to place
22 their child in a private school of their own choosing; however,
23 based on the current record, plaintiffs have not come close to
24 that have guote -- that have

showing they a, well, they a clear
25 or substantial likelihood of success in demonstrating either

(914)390-4053
36
1 that they have a valid property interest or that the defendants
2 infringed on that interest in an arbitrary or irrational
3 manner.
4 In light of the fact that the Constitution allows for
5 vaccination - that's Jacobson v. 197

mandatory Massachusetts,
6 U.S. 11 - plaintiffs have not shown that have a

(1905) they
7 substantive due process right to avoid the exclusion order's
8 higher vaccination rate, or to rely on the state's religious
9 exemption in spite of the exclusion order.
10 The Second Circuit acknowledged as much in Phillips v.
11 City of New York, finding parents did not have a substantive
12 due process right to send their non-vaccinated children to
13 school in the midst of a chicken pox outbreak. 775 F.3d 538
14 (2d Cir. 2015).
15 Because New York State could constitutionally require
16 100 percent of children to be vaccinated, the Phillips court
17 found plaintiffs had no substantive due process right allowing
18 their children to attend school without vaccinations. And
19 that's 775 F.3d at 543.
20 Plaintiffs attempt to distinguish Phillips, arguing
21 that in Phillips, the chicken pox outbreak occurred at the
22 school in question, while in this case, there have been no
23 measles cases reported in Green Meadow. But this factual
defendants'
24 distinction addresses the scope of the order under
25 state law, in other words, whether the order can be applied to
D'EMIDIO - REPORTER
(914)390-4053
37
1 schools where there are no measles cases, not the Circuit's
2 substantive due process holding.
defendants'
3 Furthermore, I am not persuaded that
outrageous,"
4 actions, quote, "warrant the labels arbitrary and
5 end quote, as required by the Second Circuit in Natale v. Town
6 of Ridgefield. First, the current measles outbreak is
7 unprecedented, part of the largest measles outbreak that New
8 York has seen since 1989 according to Dr. Ruppert's affidavit
9 in her declaration at paragraph 25.
10 Second, the defendants took incremental steps to
11 contain the outbreak and only applied the exclusion order more
12 broadly after the more narrowly-tailored order failed to stop
13 the spread of measles.
14 Finally, defendants applied the order to 60 schools,
15 not just Green Meadow, and 37 of those- schools have since met
16 the 95 percent vaccination requirement to re-admit unvaccinated
17 students.
18 Moving on to the procedural due process claim.
19 Procedural due process requires, quote, "that a deprivation of
20 life, liberty or property be preceded by notice and opportunity
case,"
21 for hearing appropriate to the nature of the end quote.
22 And that's from Chase Group Alliance v. City of New York, 620
23 F.3d 146, 150 (2d Cir. 2010).
24 Under certain circumstances, a meaningful
25 post-deprivation remedy can satisfy procedural due process.
A. D'EMIDIO - OFFICIAL COURT REPORTER

SABRINA
(914)390-4053
38
1 That proposition is from Rivera-Powell v. the New York City
2 Board of Elections, 470 F.3d 458, 465 (2d Cir. 2006).
3 Here, plaintiffs argue the exclusion order violates
plaintiffs'
4 procedural due process rights because it, quote,
extinguished,"
5 "summarily end quote, the religious state law
6 exemption. However, plaintiffs provide no legal for

authority
7 the proposition that the religious exemption (or something
8 analogous) is a life, liberty or property right that triggers
9 procedural due process protections. Nor do plaintiffs explain
10 why a post-deprivation hearing, such as a New York C.P.L.R.
11 Article 78 proceeding, is not applicable and would not be
12 sufficient under these circumstances. Without such support,
13 plaintiffs cannot surmount the high bar of showing a clear or
14 substantial likelihood of success necessary for a court to
15 issue a preliminary injunction.
16 And finally addressing the third claim which alleges
17 arbitrary, capricious and contrary to state law action on
18 behalf of defendants, as a preliminary matter, plaintiffs do
19 not explain in their complaint, memorandum of law or reply the
20 legal basis upon which they seek to challenge the exclusion
21 order as arbitrary and capricious as contrary to state law.
22 Indeed, they identify no relevant statute or common law cause
23 of action. Nevertheless, I will construe this claim as a claim
24 for relief pursuant to Article 78 of the C.P.L,R.
25 Article 78 proceedings, which challenge action or
-
(914)390-4053
39
1 inaction by agencies and officers of state and local
2 government, ask courts to determine whether an official or
3 agency has acted in excess of their statutory authority. And
4 that proposition is from Mitchell v. Fishbein, 377 F.3d 157,
5 170 (2d Cir. 2004).
6 Plaintiffs claim defendants acted arbitrarily,
7 capriciously and contrary to state law when they excluded
8 unvaccinated students from Green Meadow even though an outbreak
9 had not occurred at the school. They claim Section 66-1.10,
10 again of Title 10 of the NYCRR, only allows a health official
11 to exclude unvaccinated students when an outbreak occurs at the
12 school that those students attend.
13 Section 66-1.10 provides, quote, "In the event of an
14 outbreak of a vaccine-preventable disease in a school, the
15 state commissioner, or his or her designee, may order the
16 appropriate school officials to exclude from attendance all
immunization."
17 students who have been exempted from
18 First of all, it's not apparent to me from the
19 language of the regulation that the regulation explicitly
defendants'
20 limits the actions to the school where an outbreak
21 has occurred. I don't need to go so far as Mr. Humbach asks to
22 say that I should defer to the interpretation of the regulators
23 who were in charge of interpreting the rule. Maybe I should.
24 Maybe I shouldn't. But I can just read it, and it doesn't say
plaintiffs'
25 what counsel says it says. So, it's just not
- OFFICIAL
(914)390-40S3
40
1 apparent from the language of the regulation that it explicitly
defendants'
2 limits the actions to the school where an outbreak
3 | has occurred.
4 Furthermore, other relevant statutes and regulations
5 show, not surprisingly, that a state or county health
6 commissioner has broad powers to.control an epidemic. Section
7 2100 of the New York Public Health Law empowers local health
8 boards to guard against communicable. diseases. Also, Rockland
9 County Sanitary Code allows orders and regulations to preserve
10 the public health. That's Section 1.10.9. It also mandates
11 that health officials enforce the provisions of the public
12 health law, state sanitary code and any local law. That's
13 Section 1.11.1.7. And it also permits health officials to
14 suppress potential dangers to public health on any premises.
15 And that's Section 1.17.2.
16 On the current record, I find that plaintiffs have not
17 shown by a clear or substantial likelihood of success that
18 under these broad powers, a county health department lacks the
19 ability to exclude, or I should say that notwithstanding these
20 broad powers, the county health department lacks the ability to
21 exclude unvaccinated children from schools in a community
22 facing an unprecedented measles outbreak, such as the one
23 currently being experienced in Rockland County.
24 Finally, to address briefly the public's interest in
25 this case. Finally, while plaintiffs cannot show the required

(914)390-4053
41
1 likelihood of success on the merits, and therefore, the
2 requested preliminary injunction must be denied, they also
3 cannot show that the public's interest weighs in favor of
4 granting an injunction. And again, that's a reference to Red
5 Earth, LLC v. United States, 657 F.3d at 143.
6 While I am sympathetic to the children who have been
7 unable to attend school since December 7, 2018, as well as
8 their parents, the public's interest weighs in favor of a
9 careful, measured resolution of this case, not a preliminary
10 injunction potentially putting unvaccinated children at risk,
11 not to mention other members of the community. While
12 plaintiffs have accepted the risk for themselves and their
13 children, they cannot accept that risk for others in the
14 community.
15 That said, plaintiffs raise legitimate questions that
16 defendants have yet to answer. All I've done so far is denied
17 a preliminary injunction. There's a very high standard that
18 plaintiffs have failed to meet, but there are legitimate
19 questions that defendants have yet to answer fully, including
20 the precise statutory or regulatory authority for the current
21 exclusion order, the order's exact geographic scope and
22 duration, and the basis for the order's scope and duration.
23 There may be other issues, as well, but those are the ones that
24 jump out at me.
25 As the case proceeds, the defendants will have to

(914)390-4053
42
1 provide answers grounded in science and medicine to these
2 questions.
3 That's my ruling. So to the extent plaintiffs have
4 moved for a preliminary injunction or temporary restraining
5 order, that motion is denied.
6 Have you been formally served with a summons and
7 complaint in this case? I know. you were served with copies of
8 various things, but has there been formal service in this case,
9 thereby starting the clock running on an answer?
10 MR. HUMBACH: No, your Honor. Dr. Ruppert has not
11 been served, but I have offered to Mr. Sussman to just e-mail
12 me a copy of the summons, at which point, I'll consider myself
13 served.
14 THE COURT: All right. Well, once that happens, you
15 have three weeks to answer, move or otherwise respond to the
16 complaint, right?
17 MR. HUMBACH: Yes, your Honor.
18 THE COURT: And if you need more time for some reason,
19 you'll let me know and I'll consider that request, but anyway,
20 the rules apply. The regular rules apply. Whatever they are,
21 they apply.
22 Let me ask another question. All I've done today
23 is -- and I it's a narrow in the sense

say, actually ruling
24 that I just don't think plaintiffs have met their very
25 substantial burden to obtain an injunction such as the one

(914)390-4053
43
1 sought here which does alter the status quo. It does affect
2 the public. But at the same time, I am completely sympathetic
3 to the concerns of these parents, many of whom are in the court
4 today.
5 Realistically, when can we expect these children to be
6 able to go back to school assuming they don't reach the 95
7 percent threshold?
8 MR. HUMBACH: A.t this point, your Honor, of course, I
9 can only give you facts. And the most recent facts are, the
10 last confirmed case was March 3, 2019. The present order is
11 for a 21-day following that.
12 THE COURT: There hasn't been a confirmed case since
13 March 3rd?
14 MR. HUMBACH: Correct.
15 THE COURT: So, that's already, what? Nine days ago?
16 MR. HUMBACH: Okay. I can't predict the future any
17 better than anybody else, but those are the facts as they
18 stand.
19 THE COURT: So, right now, 21 days after March 3rd
20 would be March 24th.
21 MR. HUMBACH: Right.
22 THE COURT: And, at that point, if there are no other
23 confirmed cases, then even unvaccinated children in these
24 schools covered by the order can go back to school.
25 MR. HUMBACH: As I said, I'm not going to try to

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clients' --
1 predict my actions for the future dependent on all .
2 whatever other facts there are, but I think as things stands
3 now and the order stands now, that would be the case.
4 THE COURT: The only reason I say it is because
5 Mr. Sussman has sympathy on his side. I am sympathetic, very
6 much so, as a parent myself and as a member of the community.
7 I'm just saying that he hasn't carried his burden in this case
8 to get a preliminary injunction, but you know, this school
9 hasn't had any cases; moreover, although I'm not making this
10 finding, I've been told this by Mr. Sussman and also by the
11 affidavits that he submitted, I've been told that there's no
12 realistic contact between the children in the school or
13 families of these children and the communities in which the
14 outbreak is at its worst, which is the Hassidic communities in
15 Rockland County. And Mr. Súsaman· describes that as
16 segregation. I'm not making that finding. I'm not. I can go
17 through those communities just as well as anybody else.
18 There's no gate at the door. And in fact, I have many times in
19 my career over the decades. . .
20 said at some it becomes -- the

Having that, point,
21 health department and the health folks -- it

who, obviously
22 should be obvious from my ruling, I realize have an important
23 role to play here. You have to weigh that role against the
24 inability of these children to go to school in a school where
25 there have been no cases and where there's at least some
-
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1 indication that it's unlikely that they're going to be coming
2 in close proximity to, I mean, literally in the same room,
3 people that do have the measles.
4 There's the law; there's also common sense. There's a
5 couple different things going on here. I would like this
6 matter to get resolved.
7 MR. HUMBACH: If I may.
8 THE COURT: Obviously, Mr. Sussman would like to get
9 it resolved, his clients do, and so do I. I just don't want to
10 resolve it the way he wants. I'm not going to order you to do
11 something. He hasn't made the case.
12 As usual, he's an outstanding advocate, and he's
13 certainly not flying by the seat of his pants. He's submitted
14 a lot of information and detailed affidavits, and affidavits
15 from the doctor and so forth. I don't think it's enough.
16 Fine. I made my ruling. I think I'm right, but maybe somebody
17 else will tell me I'm wrong. I don't know. I'm not talking
18 about that right now. I'm talking about trying to act in a
19 different way in the public interest, which is to get these
20 kids back in school as soon as possible.
21 ! But I recognize there's only so much you can tell me
22 at this point, but the health people need to be talking to the
23 | education people in trying to figure out some sensible middle
24 ground, perhaps. I don't know. Maybe there is a middle ground
25 here, I don't know, but I'm hoping that there is, and I'm
SABRINA D'EMIDIO - OFFICIAL

A. COURT REPORTER
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46
1 hoping you can get there sooner rather than later.
2 Are you sensing what I'm getting at? I'm not ordering
3 you to do something, but I'm strongly encouraging you to do
4 something.
5 MR. HUMBACH: I understand. I do not believe that
6 - the the Department of Dr. Ruppert or

anybody County, Health,
7 myself - has dedicated interest to these children

any keeping
8 out of school. It's the public health that is the primary
9 interest. Although there's no deadline, it is, we hope, a
10 temporary situation. And in the life of the world, these six
11 months, over a 20-year period, over a 30-year period, these six
12 months become a report in a newspaper, and forgotten, even.
13 THE COURT: There's no question that it's temporary,
14 period. It's not permanent. It's temporary. There's also no
15 question that the reason we have this problem is because there
16 are so many people who are unvaccinated.
17 Now, these parents have the right under New York State
18 law if they have a genuine belief, you know the language in the
19 statute, genuine religious belief to decline vaccination and
20 still send their kids to school, I get it, but the reality is,
21 okay, having done that is what creates the problem because
22 vaccination is, maybe it's not 100 percent successful, but
23 pretty darn close. So, it's a tough situation, and I feel bad
24 about it, but I just don't feel, as a matter of my authority,
25 that I have the authority to do this.

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1 Honestly, Mr. Sussman, of course hindsight is always
2 20/20, but I don't quite understand why, if your argument is
3 that the state law provides X, Y and Z, and they're taking
4 actions that are arbitrary and capricious under state law or
5 exceeding their authority, whatever the language is that comes
6 out of Article 78, there's nothing that would stop you from
7 to state even and look -- state court

going court, now, saying,
8 judges, I'm sure a very large portion of their docket is
9 Article 78. You would know this better than I do. They're
10 very familiar with those kinds of cases. And I assume that
11 there's authority to grant injunctions or TROs in an Article 78
12 proceeding if it's warranted.
13 I'm not quite sure -- it feels like to me -- I'm

why
14 not criticizing you for doing it exactly. I'm not saying you
15 acted frivolously. I'm not saying any of those things. I'm
16 not. It just seems to me it would be easier to just go to
17 state court and do it, that you'd have a better chance of
18 success there, frankly, than you would have here, where you
19 would have to overcome additional burdens. You have to
20 persuade me that there are constitutional rights at stake. And
21 maybe in the fullness of time you will persuade me of that, but
22 as of now, you haven't.
23 I'm not dismissing the case. Let's be clear. The
24 record should be clear here. I don't want to see a motion in
25 three weeks saying, Well, your Honor, the law of the case is
SABRINA D'EMIDIO -
A. OFFICIAL COURT REPORTER
(914)390-4053
48
1 that you found that the plaintiffs have not stated a claim. I
2 did not say that, okay? Period.
3 It's hard for lay people to understand it, but lawyers
4 understand it. There's a difference between saying that which
5 I have not said and saying that they haven't met their very
6 high burden to get the type of injunction that they're seeking.
7 But honestly, I don't quite understand why you
8 wouldn't want to -- I'm to get a handle on the

trying. strategy
9 here. Rockland County Supreme Court certainly has the power to
10 issue exactly the kind of injunction that you're seeking from
11 me, and it seems to me that it fits more neatly within Article
12 78,
13 MR. SUSSMAN: I think if you read the Federalist
14 --
Papers,
15 THE COURT: I have read them.
16 MR. SUSSMAN: -- which I'm sure you've we all

done,
17 have forgotten them --

may
18 THE COURT: I have read them, actually.
19 MR. SUSSMAN: -- there's an explanation in the
20 Federalist Papers to answer your question, and that's really
21 why we have federal courts, honestly, from my perspective.
22 You're me --
asking
23 THE COURT: Stop. Hold on a second. Mr. Sussman, I
24 know you're a soldier in this battle. I get it.
25 MR. SUSSMAN: It's not that.
D'EMIDIO - REPORTER
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49
1 THE COURT: Wait, wait, wait.
2 The state courts existed long before the federal
3 courts existed, A.
4 MR. SUSSMAN: I understand that.
5 THE COURT: B, I've read the Federalist Papers, and
6 one of the principal points in there when they talk about the
7 court system, it might be, like, 78 or something, Federalist
8 one of the principal points -- I could be about

78, wrong that,
9 the number -- one of the principal points is federal courts are
10 courts of limited jurisdiction, and they only have such
11 , jurisdiction as is provided to them by the Constitution and the
12 laws of the United States, not divesting the state courts of
13 any jurisdiction.
14 MR. SUSSMAN: I'm not suggesting I divest this Court.
15 The principle in the Federalist Papers that appeal to me in
16 this case is that there are situations which are so emotional,
17 if you will, at a local level, that you have to move to a
18 higher level of --
authority
19 THE COURT: I'm not a higher level of authority.
20 MR. SUSSMAN: You are a higher level.
21 THE COURT: No, I'm not.
22 MR. SUSSMAN: Federal court is higher level of
23 authority.
24 THE COURT: No, sir, I'm not a higher level. I am a
25 different level of authority. I represent a sovereign and so
D'EMIDIO - OFFICIAL REPORTER

SABRINA A. COURT
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1 does the Supreme Court of New York State, represent a co-equal
2 sovereign.
3 MR. SUSSMAN: The constitutional principles that I
4 think apply here, which you obviously at this point have not
5 and I hear that --

accepted,
6 THE COURT: Only to the extent that I have denied your
7 request for a preliminary injunction. I didn't throw your case
8 out.
point."
9 MR. SUSSMAN: I said "at this I understand
10 what you said.
11 THE COURT: Right.
12 MR. SUSSMAN: I believe those are very fundamental and
13 I think ultimately need to be vindicated, and I don't think the
14 state court is the place to do that, while I acknowledge, under
15 1983, you can bring generally, not in an Article 78 proceeding,
16 though - that's the problem - constitutional claims.
17 THE COURT: Or you can just bring an Article 78
18 proceeding without a constitutional claim. You don't even need
19 a constitutional claim to bring an Article 78 proceeding in
20 state court.
21 MR. SUSSMAN: You're right.
22 THE COURT: You do need the constitutional claim to
23 bring it here; otherwise, I'd throw the case out for lack of
24 subject matter jurisdiction.
25 MR. SUSSMAN: Right, but I think the case does raise

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1 those issues. And I think that the parochial -- from my
2 perspective, and this is not to insult that court, it's to
3 simply suggest that there is a degree of parochialism that
4 exists, and is natural to exist, amongst elected judges.
5 I just feel that the kinds of issues this case raises
6 are better raised in a federal court, and that's really the
7 | explanation. Not insulting anyone, it's not personal. It's
8 just institutional. And I think that a case like this should
9 be heard where the issues of which I think are of great
10 magnitude, should be resolved. And we're here.
11 THE COURT: I appreciate that's why you're doing it.
12 I guess my only point is, there is an alternative. And you're
13 saying the alternative is not satisfactory. Okay. I hear you,
14 but that's your view. That's not my view.
15 I am not going to say anything disrespectful of the
16 Supreme Court of the State of New York. I'm just not. . I've
17 been around long enough to know that the New York State Court
18 System, all of it, not just the State Supreme Court, but all
19 the way up to the Court of Appeals, that they're populated,
20 maybe not in every case, but largely by highly competent,
21 serious public-interested judges. Okay. You're right.
22 They're elected. Fine. Whatever.
23 MR. SUSSMAN: Okay. I understand.
24 THE COURT: But that doesn't mean that they can't
25 handle a case like this which has such a local significance to
SABRINA - REPORTER
A. D'EMIDIO OFFICIAL COURT
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1 it. Anyway, that's my ruling.
2 Anything else that I need to do today?
3 Mr. Sussman, anything further?
4 MR. SUSSMAN: No, your Honor.
5 THE COURT: Mr. Humbach and Ms. -- I'm I

sorry,
6 forgot --
7 MS. NAHAS BOTTA: Botta. And no, your Honor.
8 THE COURT: Nice to meet you.
9 MS. NAHAS BOTTA: Thank you.
10 THE COURT: I don!t think we've met before. I've
11 certainly met these other gentlemen.
12 But anyway, have a good day, everybody.
13 THE DEPUTY CLERK: All rise.
14 - - -
15 Certified to be a true and correct
16 transcript of the stenographic record
17 to the bes of my ability.
18
U.S. District Court
19 Official Court Reporter
20
21
22
23
24
25

(914)390-4053

Rockland County - Federal Court Hearing Transcript

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Rockland County - Federal Court Hearing Transcript

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FILED: ROCKLAND COUNTY CLERK 04/03/2019 03:23 PM INDEX NO.

1 UNITED STATES DISTRICT COURT

7 ROCKLAND COUNTY DEPARTMENT OF

1 (In open court)

2 THE DEPUTY CLERK: In the matter of M.A. on behalf of

3 his minor children, et al., against Rockland County Department

5 Will counsel please note their appearance for the

7 MR. SUSSMAN: Michael H. Sussman, Sussman &

8 Associates, Goshen, New York, for the plaintiffs.

9 Good afternoon, your Honor.

10 THE COURT: Good afternoon.

11 MR. HUMBACH: Thomas Humbach, County Attorney for the

12 County of Rockland, for the defendants.

13 MS. NAHAS BOTTA: Good afternoon, your Honor.

14 Brigitte Nahas Botta, Deputy County Attorney.

15 THE COURT: Welcome, everybody. Have a seat, please.

16 Let's see. On March 6th, just last week, the

17 plaintiffs commenced this case. Mr. Sussman came in with a

18 proposed order to show cause, which I granted in part. I

19 scheduled today's hearing on an expedited basis. I did not

20 include in that order to show cause the requested temporary

21 restraining order. I said that I wasn't ruling it out

22 necessarily, but I was not going to enter a TRO without hearing

23 from the defendants first in a matter of this importance. So

24 you're all here today.

25 First of all, let me just apologize to Mr. Humbach for

SABRINA A. D'EMIDIO - OFFICIAL COURT REPORTER

2 parte, although we did it in open court and there was a record

3 made, when I scheduled the matter for today, I stated on the

5 meaning yesterday, but I neglected to alter or amend the

7 fault. I should have done it.

8 But I think that, Mr. Sussman, you agree with me, I

9 did say on the record it was going to be Monday.

10 MR. SUSSMAN: Yes, your Honor.

11 THE COURT: So, there was a request for an adjournment

12 of today's hearing, which I thought was unfounded. This is a

13 matter that needed to be addressed quickly, so I denied that.

14 There was a letter from one of your associates in your

15 office. I don't remember who. It might have been from you.

16 MR. HUMBACH: From Ms. Feiden.

17 THE COURT: Right, right, right. But when I denied

18 that, again, I was thinking, Well, today is whatever day it

19 was, Wednesday or Thursday, they have plenty of time to submit

20 something by Monday because I thought I had said Monday. I did

21 say Monday. I said it in open court. I just didn't put it in

22 the order, and that was my mistake.

23 Now, having said that, you rose to the occasion

25 from you today saying so.

1 Mr. Sussman, you received them some time on Friday?

2 MR. SUSSMAN: Yes, your Honor.

3 THE COURT: They weren't filed until yesterday, but

4 more importantly, you served them on opposing counsel on

6 MR. HUMBACH: Yes.

7 THE COURT: Hopefully, you'll accept my apology in

8 that regard; although, in a way, it worked out better for you

9 because if you had been required to do it by Monday, you

10 probably would have spent the entire weekend working on it. As

11 it is, you got it done on Friday. Anyway, I just wanted to

13 that is what happened. Nobody is perfect. Certainly that

14 applies to me, as well.

15 I think I'm prepared to decide this application. I do

16 have some questions really primarily for the defendants. I

18 and looked at all the exhibits and so forth.

19 Mr. Humbach, I have a couple of questions for you,